Monthly Archives: January 2012

In the Wall Street Journal today (January 25, 2012) Archbishop Timothy Dolan argues that the mandate to cover birth control for all Americans, without excluding conscience-driven religious organizations like the Catholic Church, is unfair. He argues that the US Constitution prohibits such mandates on religious institutions.

He admits that the religious exemption included in the Obama rules regarding coverage of birth control would include religious organizations that primarily engage in serving people of their own religion. But Dolan wants a broader exclusion of any employment by any Catholic organization.

My guess is that Dolan will be happy to continue to accept Federal funding for Catholic Family Services and other religiously-based organizations that provide services to non-Catholic families. Such Federal funding generally helps to defray overhead costs for the core mission of such services (Jewish Family Services also benefits from these kind of arrangements in various cities) while providing fee-for-service or contract services to help the needy and indigent.

Apparently the separation of church and state isn’t as broad as Dolan makes it sound. (He also accepts tax-free accommodations for his various real estate and sales activities, tax-free public services like fire and police, etc.) In essence he is saying, “I’m a citizen when I want to be.” While I agree with the right of freedom of religion without interference by the state regarding beliefs and ability to worship, I don’t agree on religion’s being able to pick and choose when it engages and when it doesn’t with the state on its own terms. After all, freedom of religion is a state-given (constitutional) benefit.

But I’m no constitutional scholar, nor an academic on how the church (generically) benefits from its constitutionally-defined separation from federal/state/local citizenship. I would note, however, that the church does follow some other government employment laws and rules and regulations without current constitution-related separation arguments. So they clearly comply when they want to. The question is, what is the right balance of engagement and compliance vs. belief-driven dissonance?

Let’s look at Dolan’s concluding three paragraphs, which is where his logic is incomplete.

In the third-from last paragraph, Dolan states, “Coercing religious ministries and citizens to pay directly for actions that violate their teaching is an unprecedented incursion into freedom of conscience. Organizations fear that this unjust rule will force them to … Stop serving people of all faiths…or stop providing health-care coverage to their own employees.”

This is what ethicists call a moral dilemma: when two (or more)_ options are available, all presumably equally important yet also independent and exclusive (I can’t do two or more actions, only one right now), all of which would be morally right, and a decision must be made. So the church in this case would have to decide: do I act on my principles related to birth control, or on other principles: helping the indigent no matter their religious affiliation; providing fair and just benefits to our employees. OK, a difficult decision if all of these items are equal. This is a true moral dilemma. There are lots of Catholic teachings about the vision of what a Catholic conception of a good society with social justice entails. As Nuala Kenny states in chapter 13 of Prevention vs. Treatment: What’s the Right Balance? :

Dignity of the human person

Social interdependence and social solidarity

Commitment to the common good

Special obligation to the poor and vulnerable

Stewardship of resources

Subsidiarity decisions should be made at level of those most affected.

The church then needs to decide if this concept of social justice for the poor and vulnerable, something they tend to generously through various services they provide to non-Catholics as well as Catholics, is less important for the common good than not providing birth control as a benefit. They could provide the benefit while preaching to their employees that it shouldn’t be used, in order to be in compliance with the federal rules.

In terms of the fair and just dealing with employees, the Church has been out in front of this issue for many years both in the US and abroad. If the church values this then it is hard to see how they would terminate health insurance benefits for their employees. It would have determined that the health and well-being of its employees is less important than its concern about the provision of birth control benefits. It could compensate employees for the foregone costs of health insurance and discontinue the benefit. Employees would then be obligated to purchase health insurance from exchanges or elsewhere, which also would be providing the benefit. This is a reasonable choice for the church, though inconveniencing its employees.

In the second paragraph from the end, the Archbishop states, “…the Obama administration has failed to show the same respect for the consciences of Catholics and others who object to treating pregnancy as a disease.” Indeed in this case the archbishop simply has it wrong – the Obama administration is treating birth control as it should be treated – a preventive measure. This is evident in their stating that there would be no copays or deductibles – operative as a benefit only under the prevention provision of the ACA. For many years women have argued that pregnancy is not a disease. And I think they are right. But preventive measures are not taken only to avoid disease. Such measures are also taken to enhance well-being.

If society is to take social determinants of health and well-being seriously, then they cannot ignore the effects of unplanned pregnancies on such social determinants. And the church cannot simply pick and choose when they wish to do so. So Timothy Dolan and other Archbishops around the country do have what is seemingly a moral dilemma: stick with their opposition to birth control, or stick with their support of the needy and vulnerable, or stick with their support of just and fair employment practices. Which will it be? Are these mutually exclusive? Or will a better, non-exclusive balance be struck?

Addendum 1/27/12:

David Skeel has a short op-ed in the Wall Street Journal discussing this issue regarding how the courts decide many of the issues at stake. In particular he mentions the narrow religious exception permitted under the Obama rule consistent with earlier Supreme Court rulings (Hosanna-Tabor).

When I was a resident my “mentors” did what most physicians do: they taught me how to write-up preventive screening procedures as diagnostic or therapeutic ones so that they (and the patients) could get reimbursed by insurers. So, a screening mammogram to detect early breast cancer, which wasn’t covered in the 1970s and 1980s in most insurance contracts, was written as “mass, rule-out cancer” or a screening resting EKG (which we now know is of little value) was recorded as “chest pain, rule-out ischemic heart disease.”

Surveys of physicians done by reputable researchers in the late 1980s and repeated in the late 1990s/early 2000s showed many physicians knowingly coded screening procedures fraudulently (see for example JAMA 1989;261(20):2980-85; JAMA2000;283(14):1858-1865). In the 1989 survey the researchers found that,

The majority [of physicians] indicated a willingness to misrepresent a screening test as a diagnostic test to secure an insurance payment…Most physicians indicated a willingness to engage in deception in some circumstances, justifying their decisions in terms of the consequences and placing a higher value on patient welfare and keeping confidences than on truth telling.

In the 2000 article, Wynia, et. al. concluded that:

A sizable minority of physicians report manipulating reimbursement rules so patients can receive care that physicians perceive is necessary.

Now the tables have turned. The health reform act (known as the Accountable Care Act, or ObamaCare) has a provision that requires prevention procedures to be covered at 100% without a co-pay or deductible.

Secondary prevention is the use of screening procedures like colonoscopy to detect existing disease before it has signs or symptoms (see Prevention vs. Treatment: What’s the Right Balance? pages 12-13 for more details). This preventivescreeningprocedure means that something is being done without a suspicion of existing irregularity – cholesterol is being checked to see if it is abnormal (not because it’s been abnormal and the patient wants to see if treatment has brought it down), or a colonoscopy is being done when there are no symptoms or signs that would suspect colon cancer (not because of an already established positive blood stool test, or presence of previous polyps, or prior diagnosis of colon cancer).

So physicians can get rid of their deceptive practices of old and request the procedure for what it is. Let’s hear it for the system now encouraging moral integrity for physicians! At least given old practices.

Covering new benefits, of course, costs more money for insurance plans, which will have to raise premiums to cover these new benefits. If the actuaries for insurers haven’t already raised the premiums (or requested raises, which the state insurance commissioners may have nixed or reduced), then no pity on them – they had fair warning. But presumably they have factored these newly covered benefits into their premiums, so now, as reported by the AP (see here), they are simply gaming the system the way physicians have for years.

In my experience in the health insurance industry in the 1980s and early 1990s we found many physicians gaming the system in many ways – up-coding procedures, mis-coding procedures, splitting (unbundling) what should have been bundled procedures, mis-dating follow-ups so they didn’t look as if they were for bundled payments, etc. At the same time, reputable insurers tried to administer health insurance contracts quickly and fairly. At Aetna, where I was medical director of the claims department, we prided ourselves on clearing claims very rapidly. Where there were questions, we attempted to review and adjudicate the claim as soon as information was received to clarify the questions. 98-99% of all claims were paid without question. But on a claims base of millions a day, 1-2% would still kick out >1500/ day. Not all of these were medical issues, sometimes they were contractual benefits or eligibility ones which were handled by other departments.

Certainly we heard of irreputable insurers in the business, looking for ways not to pay claims. But that wasn’t our culture. I’ve been out of the health insurance business for 21 years, so things may have changed. (OK, please don’t write in about your individual claim problem. We’ve all had disappointments with one or more claims if we’ve lived long enough and submitted enough claims to health insurers.)

I’m not trying to be an apologist for insurers – I know they can be frustrating and difficult to deal with sometimes. And certainly what they are doing now – changing the definition of a screening procedure to a diagnostic one because of findings from a screening procedure – seems deceitful.

My advice to individuals who experience this is to be sure that (a) your physician writes clearly that the requested procedure is for screening, (b) the screening requested is clearly within the guidelines of the US Preventive Services Task Force A or B recommendations, (c) you be vocal and proactive in talking with the insurer and provider in advance, and (d) if you get a billing surprise, appeal the decision as many times and layers as necessary.

So while the patient is asking for fair play from the insurer, at the same time the insurer is asking for fair play from the doctor and patient – don’t misrepresent the purpose of the test as screening if indeed it is diagnostic because of pre-existing symptoms or signs. In that case the bait and switch isn’t the insurer’s fault, but the patient’s and doctor’s. We all need fair play – honesty, not manipulation – in health care.